Chapter 7 - Documentation and Evidence

A. Filing

A prospective adoptive parent (PAP) files the Petition to Classify Orphan as an Immediate Relative (Form I-600) once the PAP has identified an orphan to adopt. The PAP must file the petition, required evidence, and any required supplements, in accordance with form instructions and any applicable fees.^[1] The PAP may file an orphan petition in the United States, or outside the United States if the PAP meets certain criteria.^[2] If the PAP files the petition while there is a suitability application^[3] pending or within 15 months of a favorable decision on a suitability application, there is no new filing fee for one child or for more than one child if they are birth siblings.^[4]

Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act)^[5]

A petitioner who has been convicted of a specified offense against a minor is prohibited from filing a family-based petition^[6] on behalf of any family-based beneficiary.^[7]

B. Required Evidence

The PAP must submit the following evidence to petition for the PAP’s adopted child’s immigration into the United States:

• Evidence that must be submitted with a suitability application (if not previously submitted with an Application for Advance Processing of an Orphan Petition (Form I-600A));
• Evidence the PAP has a primary provider (unless a limited exception applies);^[8]
• Proof of the child’s age and identity;
• Evidence the child is an orphan;
• Certified copy of the adoption or custody decree and certified translation; and
• Proof of compliance with pre-adoption requirements (if any).

1. Evidence to Support Suitability Application

If a PAP previously submitted a suitability application^[9] with the required evidence, the PAP does not need to re-submit it (unless requested by USCIS).

If a PAP did not submit a suitability application before filing the petition, USCIS considers the PAP to be filing both the suitability application and petition as a combination filing.^[10] This means the PAP must submit the following documents that USCIS requires for a suitability application,^[11] in addition to the documents that USCIS requires for the orphan petition:

• Proof of the petitioner’s U.S. citizenship;
• Proof of the petitioner’s spouse’s U.S. citizenship or lawful immigration status (if married and the spouse resides in the United States);
• Proof of the marriage between the petitioner and the spouse (if married) and evidence of the termination of any prior marriages (if previously married); and
• Home study.

2. Evidence the Prospective Adoptive Parent has a Primary Provider

The PAP must identify a primary provider (unless a limited exception applies) and provide evidence that the PAP has a primary provider.^[12]

If a home study is prepared by an accredited agency or approved person, or is reviewed and approved by an accredited agency, and the same agency or approved person is listed on the petition, the officer may accept this as evidence of a primary provider. If a different accredited agency or approved person is listed on the petition as the primary provider or the officer is uncertain as to who is serving as the primary provider, the officer must request additional evidence to establish that the accredited agency or approved person is acting as the primary provider. 

Evidence of the PAP’s primary adoption service provider may include, but is not limited to: 

• A letter from the primary adoption service provider stating that the accredited or approved adoption service provider is acting as the primary provider in the case, or demonstrating that the accredited or approved adoption service provider is involved in the provision of an adoption service if only one accredited agency or approved person is involved in providing adoption services in the case; 
• A copy of the service plan (detailing the six adoption services); or
• A copy of the contract between the petitioner and the primary adoption service provider demonstrating that the accredited agency or approved person is acting as the primary provider in the case.

3. Proof of Orphan’s Identity and Age

The PAP must submit a copy of the orphan’s birth certificate, or if such a certificate is not available, an explanation together with other proof of the child’s identity and age.^[13] Such secondary evidence could include medical records, school records, church records, entry in a family Bible, orphanage intake sheets, or affidavits from persons with first-hand knowledge of the event(s) to which they are testifying. If there is a doubt that the child is the birth child of the purported birth parent, USCIS may provide the PAP the option of submitting DNA evidence in compliance with USCIS standards to establish the claimed relationship.^[14]

Delayed Birth Certificates

Generally, USCIS does not give the same weight to delayed birth certificates as birth certificates issued at the time of birth due to the potential for fraud.^[15] Certain jurisdictions, however, may not issue birth certificates to children until they become involved in an intercountry adoption. An officer must determine the reliability of the facts contained in the delayed certificate, for an orphan child, in light of the other evidence in the record and should not reject the delayed certificate's evidentiary value simply because it was not issued at the time of the child's birth. Officers should check the U.S. Department of State (DOS)'s Country Reciprocity Schedule to determine a document's availability and reliability.

4. Evidence Child is an Orphan

The PAP must submit evidence that the child is an orphan as defined under U.S. immigration law:^[16]

• No legal parent - If the child does not have a sole or surviving parent, the PAP must submit evidence that the child is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from the child’s parents. It is not necessary to establish that each parent is gone for the same reason.
• Sole parent - If the orphan is a child of a sole parent, the PAP must submit evidence that the birth mother^[17] is a sole parent, is incapable of providing proper care for the child, and has irrevocably released the child for emigration and adoption in writing.
• Surviving parent - If the orphan is a child of a surviving parent, the PAP must submit evidence that the other parent is deceased, the surviving parent is incapable of providing proper care for the child, and the surviving parent has irrevocably released the child for emigration and adoption in writing.

Incapable of Providing Proper Care of the Child

Evidence that a parent is incapable of providing proper care of a child may consist of:

• Proof of the parent's wages in comparison to the local area's average wages for a family of the same size;
• Medical records of the child's or parent's psychological or physical difficulties;
• Court records or other proof that the parent is incarcerated and the duration of the sentence;
• A social welfare report submitted to the adoption authority in support of an adoption that discusses the background and living situation of the child;^[18] or
• Any other documentation that demonstrates the inability of the parent to provide proper care for the child.

Irrevocable Release of Child for Emigration and Adoption

Proof that the sole or surviving parent has irrevocably (knowingly and voluntary) released the child for emigration and adoption must be a written release that is: 

• In a language the parent is capable of reading and signing or marking (if the parent is illiterate, an interview can establish that the parent had full knowledge of the contents of the document and understood its irrevocable nature);
• Irrevocable; and
• Without stipulations or conditions.

The release may identify the person to whom the parent is releasing the child, even if that person is a PAP.^[19]

Death

Primary evidence of death is a death certificate in the name of the deceased parent.^[20] 

If a death certificate is not available, an officer should consider the explanation of why such a certificate is unavailable, along with secondary evidence provided by the PAP, such as funeral details, obituaries, newspaper articles, church records, or affidavits from persons with first-hand knowledge of the parent’s death.^[21] The officer may also consider the length of time since the child's parent(s) are reported to have died, and during which time, the parent has not been seen or heard from, and if relatives have cared for the child since the parent(s) died.

Abandonment, Disappearance, Desertion, Loss, or Separation

Primary evidence of abandonment, disappearance, desertion, loss, or separation is a decree from a court or other competent authority^[22] unconditionally divesting the parent(s) of all parental rights over the child because of such abandonment, disappearance, desertion, loss, or separation.^[23] A valid court order terminating parental rights over the objections of one or both parents is sufficient if the parents received notice and an opportunity to contest such action.

In the case of abandonment, primary evidence may also include a written release by the parent(s)^[24] of a child to an authorized orphanage (or other third party authorized under the child welfare laws of the foreign-sending country to provide custodial care in anticipation of or preparation for adoption) demonstrating that the parent(s) gave up all parental rights to the child and physically gave up control and possession unconditionally to the orphanage or other third party.

5. Certified Copy of Adoption or Custody Decree and Certified Translation

If the PAP met the requirements for a “full and final” adoption of the child abroad,^[25] the PAP must submit:

• A legible, certified copy of the final adoption decree showing that the PAP (and the PAP’s spouse, if married) adopted the child; and
• Evidence that the petitioner (or spouse, if married) personally saw and observed the child before or during the adoption proceedings.^[26]

If the PAP did not meet the requirements for a “full and final” adoption of the child abroad, but did obtain a final adoption or legal custody, the PAP must submit:

• A certified copy of the adoption decree or custodial decree, showing that the PAP secured legal custody in accordance with the laws of the foreign-sending country; and
• Evidence that the person, organization, or competent authority that has legal custody or control over the child has irrevocably released the child for emigration and adoption. This may be evidenced by a court order or release by the previous legal custodian of the child giving the child up for adoption to the named PAP(s) with their U.S. residence clearly incorporated into the order.

6. Proof of Compliance with Pre-Adoption and State Requirements

If the PAP did not meet the requirements for a “full and final” adoption of the child abroad,^[27] the PAP must submit:

• Evidence that the state of the child’s proposed residence allows (re)adoption or provides for judicial recognition of the adoption abroad; and
• Evidence of compliance with all state pre-adoption requirements, if any. If state law prevents the PAP from complying with any pre-adoption requirements before the child's arrival in the United States, the PAP must note the missing requirements and provide an explanation. USCIS does not, however, approve orphan petitions for a specific child without evidence of compliance with requirements or an explanation why the PAP cannot meet the requirements before the child’s arrival.

C. Primary and Secondary Evidence

A PAP should submit primary evidence when available. Primary evidence is evidence that, on its face, proves a fact. For example, primary evidence of death is a death certificate.

Not all countries, however, have the same kind of documentary practices as the United States. If primary evidence is not available, a PAP must demonstrate its unavailability and should submit secondary evidence.^[28] If both primary and secondary evidence are unavailable, the PAP must demonstrate the unavailability of the primary and secondary evidence and submit two or more affidavits that are sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.^[29]

Footnotes

[^ 1] See 8 CFR 103.2. See Fee Schedule (Form G-1055). See instructions for Petition to Classify Orphan as an Immediate Relative (Form I-600). For more information on filing timeframes, see Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 6, Submitting Requests, Section D, Filing Periods Ending on Weekends or Federal Holidays [1 USCIS-PM B.6(D)].

[^ 2] See 8 CFR 204.3(g). See the Filing Instructions for Form I-600, Petition to Classify Orphan as an Immediate Relative webpage.

[^ 3] See Application for Advance Processing of an Orphan Petition (Form I-600A).

[^ 4] See Fee Schedule (Form G-1055).

[^ 5] See Pub. L. 109-248 (PDF) (July 27, 2006).

[^ 6] This includes the Petition to Classify Orphan as an Immediate Relative (Form I-600).

[^ 7] See INA 204(a)(1)(A)(i). See INA 204(a)(1)(B)(i). See INA 101(a)(15)(K). See Volume 6, Immigrants, Part C, Adam Walsh Act [6 USCIS-PM C].

[^ 8] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].

[^ 9] See the Application for Advance Processing of an Orphan Petition (Form I-600A).

[^ 10] See Part B, Adoptive Parent Suitability Determinations, Chapter 2, Eligibility, Documentation and Evidence (Orphan Process), Section B, Filing, Subsection 2, Combination Filing [5 USCIS-PM B.2(B)(2)].

[^ 11] See instructions for the Petition to Classify Orphan as an Immediate Relative (Form I-600).

[^ 12] See Part A, Adoptions Overview, Chapter 5, Authorized Adoption Service Providers [5 USCIS-PM A.5].

[^ 13] See 8 CFR 204.3(d)(1)(ii). When possible, the PAP should submit the birth certificate showing the child’s birth parent(s), and not only a new birth certificate issued after the adoption.

[^ 14] See DNA Evidence of Sibling Relationships, PM-602-0106.1, issued April 17, 2018.

[^ 15] See Matter of Bueno-Almonte (PDF), 21 I&N Dec. 1029, 1032-33 (BIA 1997). See Matter of Ma (PDF), 20 I&N Dec. 394 (BIA 1991). See Matter of Serna (PDF), 16 I&N Dec. 643 (BIA 1978).

[^ 16] See Chapter 4, Eligibility Requirements Specific to Orphans [5 USCIS-PM C.4].

[^ 17] The father of an orphan is ineligible for classification as a sole parent as defined in 8 CFR 204.3(b).

[^ 18] See Matter of Rodriguez (PDF), 18 I&N Dec. 9, 11 (Reg. Comm. 1980) which cites a social welfare agency study as evidence of a sole parent's inability to provide proper care.

[^ 19] This is different from the definition of abandonment, which does not allow a release to be made directly to a PAP.

[^ 20] To determine whether a document may be available in a particular country, see DOS’s Country Reciprocity Schedule webpage.

[^ 21] See 8 CFR 103.2(b)(2)(i).

[^ 22] This could be a separate decree or incorporated into the adoption decree itself.

[^ 23] In the case of desertion or disappearance, the decree must also make the child a ward of the state because of such disappearance or desertion.

[^ 24] This includes a subsequent guardian who becomes the legal adoptive parent of the child.

[^ 25] For information on “full and final” adoptions for orphan cases, see Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5]. For general information on what qualifies as a final adoption for immigration purposes, see Part A, Adoptions Overview, Chapter 4, Adoption Definition and Order Validity [5 USCIS-PM A.4].

[^ 26] If the petitioner is married, only one spouse needs to have seen and observed the child before or during the adoption proceedings.

[^ 27] See Chapter 5, Qualifying Adoptive or Custodial Relationship [5 USCIS-PM C.5].

[^ 28] See 8 CFR 103.2(b)(2)(i).

[^ 29] See 8 CFR 103.2(b)(2)(i)-(ii).